Standing Committee G

[David Taylor in the Chair]

Clean Neighbourhoods and Environment Bill

Clause 39 ordered to stand part of the Bill.

Clause 40 - Defence of acting under employer's instructions

Question proposed, That the clause stand part of the Bill.

David Ruffley: I welcome you to the Chair, Mr. Taylor, in a capacity that I am not used to filling. For the benefit of today's proceedings, I am a talking Whip. I am trying to fill the shoes—some would say that it is an almost impossible job—of my hon. Friend the Member for Vale of York (Miss McIntosh), who is unavoidably detained on business elsewhere. Hon. Members may wonder how anything could be more pressing than part 5 of this Bill, and I cannot fathom why she should not want to be here.
The clause needs briefly to be put in context, so I hope that you will not rule me out of order, Mr. Taylor. It covers the defence of acting under employer's instructions, but it is in line with the other clauses of this part of the Bill, which tighten up the penalties for illegal disposal of waste and fly-tipping. Much fly-tipping is prompted by the desire to avoid existing penalties and sanctions. Many unscrupulous people think that the controls and charges associated with the disposal of waste are worth avoiding. They want to avoid paying a fee for collection by a local authority, having to have a waste licence or having to pay landfill tax. Although fly-tipping is a criminal offence, some people are not yet deterred by the penalties attached to it, which can be a fine of up to £20,000 or six months' imprisonment if convicted in a magistrates court, and an unlimited fine or up to two years in prison if convicted in a Crown court. 
We all understand why, at United Kingdom and European level, there is a demand for the tightening up of penalties and the drawing of offences. However, before discussing the meat of clause 40, which provides an almost instantaneous and considerable change, we have to be mindful that tightening up the offences and the penalties associated with new offences may make it more attractive for potential transgressors to try to avoid the law. The higher the penalty, the more attractive it may become economically to try to get around the law. 
What consideration has the Minister given to the possible intimidation of employees by their employers when asked to carry out unlawful activities? The clause, in effect, repeals section 33(7)(b) of the Environmental Protection Act 1990. Why is there a need to repeal it now? What was the reasoning for that defence for employees? What has changed in the intervening years that means that employees should get less protection? We need to have a better understanding of the position of employees under the clause. 
In short, does the Minister agree that it would be unfortunate if employees were unfairly prosecuted if it could be shown that they were under undue pressure and forced to carry out such duties against their will? Are there any other legal dispensations that would give an employee who is being coerced or threatened protection against his employer, because the clause appears to render any necessary protection nugatory? There will be no statutory protection. I look forward to hearing the Minister's comments on those focused points.

Elliot Morley: May I start by saying how good it is to see you in the Chair this morning, Mr. Taylor? I always enjoy serving on Committees under your stewardship. May I also welcome the hon. Member for Bury St. Edmunds (Mr. Ruffley) on his guest appearance?
Clause 40 amends section 33 of the 1990 Act under which it is an offence to dispose of waste illegally. The amendment, as the hon. Gentleman rightly states, removes the defence of acting under one's employer's instructions. The hon. Gentleman said that an employee of a company may be threatened and intimidated. That is quite possible. I am sure that was the reasoning for the original provision in the 1990 Act. The problem, as hon. Members may know, is that that is used as an enormous loophole. An employee can use that defence when he has been apprehended for illegal activities. He can argue that he was simply following orders, and we all know the connotations of that. It is too great a loophole. 
The court can take a genuine case of intimidation and bullying into account as a mitigating factor. It does not detract from the fact that it is an illegal activity. Someone has carried out an illegal activity, whether or not they were being intimidated or bullied. Those individuals should bear some responsibility, but the intimidation is a factor that could be taken into  account by the court and that could influence the level of fine or other punishment. It is important that we do not allow this loophole to remain. I hope that the hon. Gentleman accepts that the courts can take this into consideration. He made some valid points, but it is important to close the potential loophole.

Nigel Evans: I understand fully the Minister's argument. If a person could use the excuse that they were operating under orders and got off because of that, and no one was therefore considered to be culpable, clearly that would be useless. We want to see an end to any unlawful depositing of waste.
What guidance will be issued to employees about what rights they have? If they were to say to an employer that they would not do what they were asked, they could risk losing their jobs and their livelihoods.

David Taylor: Order. Interventions should be brief.

Elliot Morley: Anyone who is involved in the waste business and waste transfer should have a licence, and there is a duty of care that goes with that. Part of that duty of care is the responsibility of the employer to make their employees aware of the law. Each case is different, and if there are mitigating circumstances in relation to the actions of an employee, the courts can take that into account. However, even for well-meaning reasons, we must not allow a potential loophole in the legislation that the unscrupulous can exploit. Sadly, the 1990 legislation has been exploited, which is why it is important that we close that loophole.

David Ruffley: I thank the Minister for his response. His point about mitigation relates to sentencing not to liability. If the offence has been committed the employee, even if he or she has been bullied into it, gets the criminal record. The intimidation or bullying is beside the point.

Nigel Evans: Does my hon. Friend agree with me that if an employee has been threatened and feels that his job and livelihood are at stake, that employee should not be in the dock? We want the unscrupulous employer in the dock for harassing their employee to tip waste.

David Ruffley: I agree with my hon. Friend. That is an example of the compassionate Conservatism that we on this side of the Committee now exhibit—[Interruption.] The Minister pays us compliments—at least, I think that they are compliments—from a sedentary position. My hon. Friend and I take seriously the point that unscrupulous employers—unscrupulous and ruthless business men—do a disservice to capitalism. We believe in capitalism and free markets, but we should, without fear or favour, condemn unscrupulous business practice where it occurs.
I return to the point that the Minister raised about mitigation. Mitigation is considered when sentencing takes place; it is not on the merits of the criminal case that is brought against the accused. The Minister talks  about there being a huge loophole. What is the percentage of occasions on which an action has been brought under current legislation, and on which that defence was prayed in aid by an individual or company? If we have that statistic, we can better estimate the size of the loophole and, if we know the hugeness of the loophole—to use the Minister's phrase—we will better understand the need for the clause. I hope that the Minister can furnish me with that information.

Elliot Morley: Some of the figures may be difficult to extract. However, I shall respond to the other general points that the hon. Gentleman made. Prosecutions can be taken against the employee and the employer, depending on the circumstances. I would not want him to think that an unscrupulous employer who intimidated an employee into taking part in a criminal action relating to fly-tipping would get away with it, because both can be prosecuted under the law. However, it is not a defence for most offences committed in the course of someone's work that they were under instructions.
I am not unsympathetic to the points made about bullying and intimidation, because that does go on, and what the hon. Gentleman says about mitigation in relation to sentencing is of course true, but the person has committed a criminal offence. It may be easy for those of us who do not know the circumstances or the pressure that people are under to say that, but they should not commit a criminal offence, because of course that makes them liable too. They should report what is happening; there is action that they can take. The hon. Gentleman talked about the unacceptable face of capitalism. I gently remind him that we have of course been advocates of trade unions, whose aim is precisely to protect the interests of people who are put in those circumstances and to give them a defence. There is provision for such people, and steps that they can take. 
There is a big loophole. I cannot give the hon. Gentleman detailed information as to the exact number of cases, and it may be very difficult to acquire that information, but I know from discussions with the Environment Agency and local authorities that they have been frustrated by people who have tried to use the defence that they were under instructions. That is why the measure is supported by the Local Government Association and the Environment Agency; because they can see that it will make the legislation more effective.

Nigel Evans: As I have already intimated to the Minister, I can see that the current law is fairly ineffective. I imagine that, if we left the law as it is, every time someone was caught putting waste somewhere where they should not, they would plead that they were operating under orders and there was nothing that they could do, and therefore no one would ever be convicted of the offence. I therefore understand why the Minister is advancing the clause, and I am fairly sympathetic towards it. However, we shall discuss sentencing later, and there are hefty fines in relation to clause 40. Indeed, the end result could be  a jail sentence. The clause could lead to someone getting a custodial sentence. That is why we must get the provision right.
I hope that the Minister will give us some assurances. I heard what he said about the licences under which people operate and the fact that there is a duty on the employer to ensure that everyone knows exactly the law under which they operate and the things that they ought not to do. The Minister is one of the more commonsensical Ministers in the Government—a rare breed—and knows the reality of the world in which certain businesses operate. Indeed, we are all realistic enough to know that there are unscrupulous employers and some businesses will say that they are under pressure to turn a profit. Given that the costs of disposing of waste legally are quite high, there may be temptations for unscrupulous employers and businesses working on the margins to dump waste where they ought not to do so. Clearly, however, that should not be allowed. 
I therefore hope that the Minister will give us an assurance this morning that, despite the fact that there the employer has a duty of care, sufficient publicity campaigns will be provided. For instance, if an employer had to employ somebody, they would have to have a certificate on the wall to show what they were doing. Health and safety require posters to be displayed in relation to certain practices that have to be followed in a business. I hope that the Minister will assure us that there will be a requirement for publicity campaigns for businesses that deal with any waste, so that employers and employees know where they stand under this clause and clause 41. They must know what breaking the law will entail, what the conviction rate is likely to be, what likelihood there is of imprisonment and what fines will be imposed. 
I feel for employees who are put in an almost impossible position because they come under pressure from unscrupulous employers. They risk losing their jobs, or never getting overtime because extra work goes to people who are prepared to dump waste. When employees who know what is going on decide to become whistleblowers—when they blow the gaff, which is what we want to encourage—they should know that they will have some protection, and not end up in the dock themselves. If the employer then decides to give information that the employee—

David Taylor: Order. The hon. Gentleman is straying wide of the clause.

Nigel Evans: Thank you, Mr. Taylor. I will end now. I am looking for an assurance that when clause 40 becomes law there will be protection, that there will be sufficient publicity, and that guidance will be given to employees about what they should do if they are told to do something that contravenes the clause.

Elliot Morley: I can certainly give the hon. Gentleman the assurance that we regularly meet trade associations for the waste companies; they take a very responsible  position on these issues. The hazardous waste forum includes the Federation of Small Businesses and many small and medium-sized enterprises. It is true that some companies may not be part of a trade association, but the Environment Agency has programmes for ensuring that people are well aware of the law. I will talk to the hon. Gentleman about ensuring that people are aware of the changes that we are discussing today.
Whistleblowing is not within the remit of the Bill, but measures are being taken to protect the rights of whistleblowers. 
Question put and agreed to. 
Clause 40 ordered to stand part of the Bill.

Clause 41 - penalties on conviction

Question proposed, That the clause stand part of the Bill.

David Ruffley: This is an important clause, creating increased penalties on conviction for the unlawful disposal of waste. The clause proposes to increase the maximum fine on summary conviction from £20,000 to £50,000, and to increase the maximum term for imprisonment on conviction for the unlawful disposal of non-hazardous waste to five years.
The Opposition welcome action in the clause to curb the unlawful disposal of waste, as do all those who suffer the ill effects of this ghastly, antisocial and often dangerous practice. We hope that the new penalties in the clause will be a deterrent. However, we are worried that the penalties will be unenforceable because the courts will think that the penalties are a tad too draconian and will not be so willing to convict or to impose the maximum sentences. 
The need for what, on the face of it, seem draconian penalties is understandable. I understand that Ministers have taken that route because this illegal practice is on the increase. It is regrettable that there is no fine-grained, detailed national data on the scale of fly-tipping, but I believe that the Government have acknowledged that there is evidence that it has increased in recent years. To understand the need for the serious increase in the penalties, we need to understand that it is a policy response to a burgeoning problem. 
The scale of the problem can be gleaned from Environment Agency prosecutions and anecdotal evidence at local authority level.

Nigel Evans: Does my hon. Friend believe that it would be helpful for the Minister to tell us exactly what advice he has been given by the courts, the police or the Environment Agency in setting the fines as high as they are? I am not saying that the fines are not appropriate, but I want to know what advice was received.

David Ruffley: My hon. Friend anticipates my point. Like him, I do not necessarily oppose the level of the fines. We need to test the proposition and understand what advice was received and from whom it came that  led the Minister and his ministerial colleagues to set the penalties at these high levels. My hon. Friend's question is very much the point, and I will reiterate that before I sit down.
The Environment Agency collects information on prosecutions that it has handled, and it has noted a 19 per cent. increase in levels of prosecution in England and Wales between 2001 and 2002. In the calendar year 2002, there were 252 prosecutions for fly-tipping, resulting in total fines of approximately £228,000. From January to October 2003, there were 210 prosecutions, totalling fines of £225,000. Prior to that, the number of successful prosecutions relating to a variety of waste offences rose significantly from 141 in 1999, to 225 in 2001—a 60 per cent. increase. The trends that the Environment Agency is recording show that the problem is on the rise. 
Many local authorities are also noticing and recording more incidents of fly-tipping. In 2002, the London borough of Lewisham counted 13,600 incidents, which cost more than £500,000 to clean up. That figure was 50 per cent. higher than in 2001, which in turn was 50 per cent. up on the year before that. That is an example of an inner-city area in which fly-tipping is one of many challenges and problems, but this antisocial and illegal practice also takes place in rural areas such as my constituency. 
When I first became the Member of Parliament for Bury St. Edmunds in 1997—by the skin of my teeth, in that dreadful year for the Conservative party—one of the first things I noticed was how clean and tidy it was and that there were virtually no instances of fly-tipping in any parts of the town. Over the past year or so, in Eastgate street—an attractive part of an attractive town centre—there have been cases of fly-tipping, with prams and all sorts of rubbish left lying around what was formally waste ground and public land. From anecdotal evidence, it seems that more examples of fly-tipping are occurring in councils up and down the land—not just the Lewishams but places such as the beautiful, pastoral idyll that is Bury St. Edmunds town centre. 
My hon. Friend the Member for Ribble Valley made a point about the higher level of fines and the higher maximum term of imprisonment. It is important to know whom the Minister has consulted in setting these fines. Why have they risen from £20,000 to £50,000 rather than to £30,000 or £40,000? Why has the maximum term of imprisonment been increased? Has he spoken to prosecuting authorities or any of those responsible for the exercise of the judicial process, rather than simply the Environment Agency? 
Are magistrates using the existing legislation and the fines and maximum sentences to the full? It does not make much sense to pass stricter penalties if the existing penalties are not being used in all their force and majesty by magistrates or higher courts. Any statistics that the Minister has on the existing regime and how it is being utilised would help us to understand how effective the clause might be. 
Does the Department have an automatic procedure for reviewing the utilisation of new criminal penalties? Could it carry out a review after a year to see whether  the new penalties were being utilised by the courts? Many laws are little used. For example, there are powers to impose orders on parents with unruly children: the law is there, yet the magistrates courts simply do not use it. Unless the Department reviews how the new regime is working, the law will be seen to be an ass. The powers will be there, but they will not be utilised. A bad set of new penalties will be passed in the clause. None of us want to see that happen. We are all in the business of passing good law. I hope that the Minister will answer my three questions on the important point of increased penalties.

Sue Doughty: I welcome you back to our Committee, Mr. Taylor. It is always interesting having two Chairmen. I am grateful to both of you for ensuring that we proceed at a reasonable pace.
My main concern about the clause is that the penalties must be set at a level that will act as a deterrent. One of the things that emerged clearly from the Environmental Audit Committee report on environmental crime and the courts is that magistrates are reluctant to fine up to the current level. Little account is taken of the profits that accrue from the crime. If we are to have hard penalties that deter people, we must ensure that the courts have guidelines. 
One of the worrying things that we found in our investigation was that, because magistrates see these cases so infrequently, they do not get their heads around the fact that people are making real money. Fly-tipping is big business for some of these people. There are repeat offenders. They get up to all sorts of nonsense such as burying waste, tipping waste, causing annoyance to everyone else, simply so that they can make a profit. I want to know that the courts will bear that in mind. We need guidelines on sentencing and training. I hope that the Government will consider whether some magistrates ought to be more specialist in this area. At present they do everything and they are not on top of the problem. Burglary comes up week after week in a magistrates court, but fly-tipping does not. In fact, fly-tipping comes up infrequently. We need magistrates to understand the importance of the matter. We also need to ensure that the fines imposed on companies are substantial enough to have a real economic impact. The bad publicity should also have an impact. At present, we are not dealing properly with the people involved in committing those really wicked crimes, which pollute the environment, taint land and waterways and cause immense environmental problems. 
I should like to hear from the Minister what steps the Government will take to ensure that the magistracy makes a much stronger assessment of the harm done, and of the frequency of fly-tipping, particularly by certain businesses or individuals, to ensure that there is a real deterrent. We wanted to see higher sentences in place, because previously there was no deterrent. When we discuss the next clause, I shall return to our concern about conviction. However, at this stage, I say that is no good having the deterrents if the courts are afraid to use them.

Nigel Evans: Please forgive my lack of etiquette, Mr. Taylor, in not welcoming you to the Chair. That was a lapse of judgment on my part, and I apologise. It is wonderful to have you chairing the Committee.
I support the clause, despite the fact that the penalties are high. However, that reflects the seriousness of the offence that we are discussing. It is rare for me to agree wholeheartedly with everything—or with anything—that a Liberal Democrat says, but on this occasion I will make an exception. Perhaps this is another lapse of judgment.

David Ruffley: Withdraw.

Nigel Evans: Clearly, that will be reported back to the Whips' meeting. Illegal waste disposal is a serious crime. The hon. Lady was absolutely right to talk about the health hazards that it can cause, and about the fact that it is unsightly and can be extremely dangerous. I fear that unless we tackle the problem properly, it will increase. It needs to be tackled through deterrents—through increasing the penalties that people face if they are caught and properly convicted before a court.
We need to do something about the problem, because there is still a lot of open land around our country where tipping could take place. Fly-tipping does not just desecrate rural areas; urban areas also suffer. In urban areas, there are places where people do not go on a regular basis, although young kids might play there. People will come to know that those areas do not have CCTV cameras and that the police never go there, and will use those areas to dispose of waste illegally. 
The problem may be on the increase because the costs of waste disposal are also on the increase. That increase in costs reflects, quite rightly, the environmental concerns that we all have about how much waste is produced in the UK these days. We are not just talking about hazardous waste, although I suspect that all waste, particularly unnecessary waste, could be seen to be hazardous in the climate in which we now operate. I hope that we can encourage businesses to cut down on unnecessary waste, although that is not tackled in this Bill. 
As the costs are going sky high, the temptation for a number of businesses that work on the margins is to fly-tip instead of paying the costs of disposal, which could be high. They do not wish to incur those costs because every pound that they spend on waste disposal is one pound less profit for the company. 
We must send the message loud and clear to those companies that that will not be tolerated, and that if they are caught disposing of waste in an inappropriate fashion they will face severe penalties. The penalties that are mentioned in the clause include a custodial sentence of up to five years, which is appropriate in the worst of circumstances, and fines of £50,000. Later in our consideration of the Bill, we shall deal with clean-up costs and the loss of vehicles. In some circumstances, the fine may be such that it puts the business in jeopardy.

Sue Doughty: In this welcome spirit of solidarity, I ask the hon. Gentleman if he agrees that it is much more important to send out a message to those who create waste in the first place that the costs of using a product such as asbestos or undertaking demolition work must include the legal disposal of waste? Members of the public need to understand that they cannot just say, ''I have bought something new and I don't care what happens to the old one.'' It is the lifetime costs that are important.

Nigel Evans: Again, we are in solidarity not just with the Liberal Democrats but with the entire Committee. I completely agree with the hon. Member for Guildford (Sue Doughty). There is a cost involved in the disposal of the products and packaging that people buy. There is too much packaging, and it should be more environmentally friendly; we must encourage that.
The hon. Lady is absolutely right that the public need to know that they have a duty when they dispose of a product—they cannot just dump it in the local tip. Many local authorities bend over backwards to discourage fly-tipping by helping households to dispose of sofas, televisions and so on. However, the clause refers principally to businesses and how they dispose of the items that they produce. They, too, must recognise that they have a legal duty in that respect. The clause is important because it sends a signal to those companies. The Minister said that there will be negotiations with trade associations, which will be made well aware of the new penalties in the Bill. 
The hon. Lady also rightly mentioned repeat offenders. Someone may be caught red-handed disposing of waste illegally, and although it is not the first time that they have done so, it may be the first time that they have been caught. I hope that the guidelines will state that the court should be far more severe with a repeat offender when considering whether to impose a fine of £50,000 or a custodial sentence. 
The fines and the custodial sentence specified in the clause are right in certain circumstances. We do not want businesses to think that they can gain a competitive advantage over others by flouting the law. Clause 41 sends an appropriate message to let people know that fly-tipping will not be tolerated, that it is a serious crime that will be dealt with in a serious manner, with a hefty fine or a custodial sentence.

Elliot Morley: I am delighted by the cross-party unity on clause 41. I am just a bit surprised, therefore, that it has taken so long to agree it. The clause amends the penalties available for offences under section 33 of the Environmental Protection Act 1990. It increases the maximum available fine on summary conviction from £20,000 to £50,000, and the maximum term of imprisonment on conviction on indictment for non-hazardous waste offences to five years. That makes the position the same as that on offences involving hazardous waste. There was a disparity between the penalties, but now they are exactly the same.
The point is right that there may be very small quantities of hazardous waste but huge quantities of non-hazardous waste, which can have an enormous environmental impact. The idea of increasing the penalties—£50,000 and five years are quite substantial penalties—is to send a clear message that Parliament believes, as hon. Members have emphasised, that these are serious environmental offences. They are antisocial in relation to domestic waste and domestic fly-tipping, and they are criminal in relation to commercial involvement in fly-tipping. 
It is also right that there is a deliberate policy of moving away from landfill and towards treatment of waste. All over the country, respectable waste management companies are investing in sophisticated treatment. An example is on-site soil remediation, which means that hazardous soil does not have to be moved. The recycling of building waste means that it can be turned back into aggregates and reused in building. Those are examples of what we want. Incidentally, the policy also encourages a new sector of companies, which are involved in recycling and the other services that I have described. That is expensive and a big investment for those companies, and they should not be undermined by the criminal activities of people who are simply dumping waste illegally to get the profits from that. It is environmentally damaging and it is commercially damaging to respectable companies, as we are well aware. 
The hon. Member for Bury St. Edmunds asked what consultation we had undertaken on the level of fines. As part of the general consultation on the Bill, we received representations from the LGA and the Environment Agency, which were keen to see the fines increased. We also had discussions with the Home Office, which of course represents magistrates and the judiciary and which was keen to see levels of fine that would allow magistrates a wide range of options. When the crime is serious, they have the option of quite significant fines and, indeed, custodial sentences. Incidentally, magistrates take note of what Parliament puts in legislation, because it shows how strongly Parliament feels about the offence. We are therefore sending magistrates a clear message on this issue. 
Deterrence is also relevant. It is important that we deter people from getting involved in the activities that we are discussing. The hon. Member for Bury St. Edmunds mentioned figures for the increased incidence of fly-tipping, and we do not dispute that there has been an increase. That is why it is all the more  important that we have effective measures to tackle fly-tipping. I must sound a note of caution to the hon. Gentleman, however. There has long been a need for better data on what exactly is going on and the incidence of fly-tipping, which is why the Government have funded the Flycatcher database. All fly-tipping incidents are now reported, and we have a national database that gives us a much better idea of what is going on. The idea is that we have a better understanding of the problem and we identify hotspots. Despite the better data, however, it is difficult to make comparisons, so although we do not dispute that there has been an increase, we must be a little cautious about interpreting the figures.

Sue Doughty: It is my understanding—I stand to be corrected if the Minister has more recent information—that only 70 per cent. of councils report incidents to Flycatcher and it is not fully implemented across every council. Can he give us more news on that?

Elliot Morley: Flycatcher is relatively new and does not yet have 100 per cent. involvement. However, it is being rolled out and developed, and we are confident that we will achieve 100 per cent. involvement. In fact, I am pleased to tell the hon. Lady that we have 99 per cent. participation in Flycatcher from local authorities, which is pretty good as it has been and is still expanding.

David Taylor: Order. May I bring the Minister back to clause 41?

Elliot Morley: Certainly. I appreciate your guidance, Mr. Taylor. I was responding to the wide-ranging debate that we have had, but you are right that we must return to the clause.
There are two points to bear in mind about how magistrates apply the provisions of the clause. First, we sponsored a very successful conference on environmental law in November, which considered training and ticketing magistrates and possibly having specialist magistrates courts to deal with environmental issues, because concern has been raised that some fines have not reflected the seriousness of the offence. Secondly, the Committee might like to know that we are working with magistrates to ensure that they are more aware of the impact of environmental crime. A guidance pack entitled ''Costing the Earth'' has been issued by the Magistrates Association to assist in dealing with environmental cases, and we welcome that initiative. 
I assure the Committee that the clause is very important in establishing the level of fines and punishment.

Paddy Tipping: Before my hon. Friend the Minister concludes, will he make it absolutely clear that serious fines will be a deterrent in urban fringes? He has talked about a database and deterrents through fines, but will he also confirm that  the clause is part of a package of measures and that the Environment Agency is putting more resources into this area?

Elliot Morley: I can confirm that this clause is part of a package of measures, because we are not prepared to tolerate environmental crimes, which are serious, damaging, and an issue of quality of life. We need to address the problem through a range of measures including the training of magistrates, raising awareness of impacts, enforcement levels, working in partnership with the Environment Agency, local authorities and the police, using technology to track down and identify offenders, data capture, and the battery of measures in the Bill, which are effective and show that we are not prepared to tolerate such crimes.
Question put and agreed to. 
Clause 41 ordered to stand part of the Bill. 
Clause 42 ordered to stand part of the Bill.

Clause 43 - Clean-up costs

Sue Doughty: I beg to move amendment No. 94, in clause 43, page 37, line 35, at end insert 'and its legal disposal'.

David Taylor: With this it will be convenient to discuss amendment No. 115, in clause 43, page 38, line 20, at end insert—
 '(4) The Secretary of State shall make regulations such that where an offence has been committed under section 33 of that Act and no order is made to provide compensation for clean up costs incurred following that offence, the landowner shall not be liable for the clean up costs provided that he took reasonable steps to prevent the offence.'.

Sue Doughty: You were not able to be with us during our previous sitting, Mr. Taylor, when I had to wind up rather hurriedly to allow members of the Committee to go home on Thursday evening.

Elliot Morley: That was wise.

Alun Michael: Generous to a fault.

Sue Doughty: I am all heart. Amendment No. 94 is intended to ensure that we drive home the point that clean-up includes legal disposal of waste. It may be a pedantic point, but the Bill is partly about refocusing on waste and the need to do the right thing.
The problems relating to clean-up costs come back to the lack of convictions for fly-tipping, and we are worried about who is paying for the cost of clean-up. On Thursday, we started to talk about the lack of funding for the Environment Agency, which is an important point. In some of the information provided by the agency in preparation for this Committee, it highlighted some of the issues. Tackling waste crime in England and Wales costs landowners, local authorities  and the Environment Agency £100 million to £150 million each year. The Environment Agency spends about £7 million on waste-related crime. Then we get to the interesting statistic showing that it dealt with about 5,400 waste-crime incidents in 2003, which resulted in more than 50 prosecutions. It is almost trying to say that 51 is better than none. Quite frankly more than 50 prosecutions out of 5,400 waste-crime incidents does not identify a lot of polluters who should pay for the cost of clean-up. The whole principle is that one finds the person who did it so that he cleans it up. 
Instead, we have the problem that I outlined on Second Reading. Farmers and others who have waste dumped on their land will be left without a remedy. That is assuming that they report it. As I mentioned earlier, they do not always report it because they get stuck with the cost of clean-up. The Environmental Audit Committee's report found that —it has also been pointed out to me locally—some of the people at the Environment Agency who are responsible for detection, conviction and prevention are not necessarily of the highest calibre. Sadly, we are even less likely to get a conviction. 
The clause says that the cost of removing the waste and cleaning up the land is recovered from the offender. If the Environment Agency is not getting convictions, how will we get the clean-up costs? The Government need to explain where the money will come from for clean-up costs. Why will nothing be done for farmers who may have been innocent and who may have done all that they can to prevent someone from backing into their fields and tipping two lorry loads of asbestos or 20 lorry loads of building waste? Farmers can shore up their defences, but if someone comes at night with a dirty great lorry or a dumper and decides to reverse in, knock the gate down and go to the other side of the field, there is a major problem. What will the Government do to ensure that the innocent are not saddled with the costs? Although the clause looks good on paper, in principle it means virtually nothing if we are not going to get the worst people convicted. 
Under section 33 of the Environmental Protection Act 1990, landowners and occupiers who neither caused nor knowingly permitted the incident to take place can appeal against notices served by the authorities for removal of fly-tipped waste or cost recovery. That means that the farmer has to appeal against what he should have done earlier, which was to clean up the site. He will not sit there with all that stuff when the Environment Agency is on his back to do a clean-up. In practice, as I mentioned on Second Reading and as was mentioned in the debate on the Environmental Audit Committee's report, farmers do not report incidents of fly-tipping. I see nothing in the clause that suggests that they would do so, even given the much higher fines. The clause gives them no justice. They will be landed with the problem and nothing in the clause will get a conviction and make the polluter pay.

David Ruffley: I have some sympathy with the hon. Lady's amendment and I know that my hon. Friend the Member for Ribble Valley shares my warm feelings towards it. A number of concerns about clean-up costs have been made widely known by the National Farmers Union. For a while, it has been concerned to see provisions aimed at addressing cost recovery, but it also has concerns about the operation of the new regime. That is why the amendment may be needed.
 In particular, the NFU has been concerned to point out that the identification of the true culprit behind any illegal tipping offence can be difficult. The landowner or occupier is not always the offender, but can be the easiest person for the agency or relevant officer to approach. That is in the nature of things; the landowner or occupier is a fixed person who is easy to identify, whereas more transient beings are less easy to identify. 
The experience of the NFU is that many of its members have been penalised as the guilty party under section 33 of the 1990 Act. Although landowners and occupiers can appeal against notices served by authorities for the removal of fly-tipped waste, the NFU believes that they should not have to pay for the costs of enforcement, recovery and clean-up until the final outcome of any appeal is known. Could the Minister clarify the matter of the incurring of costs while an appeal is still pending in the case of a landowner or occupier who has been found guilty of fly-tipping and is subject to a costs order for enforcement and clean-up, but who wishes to appeal because they say that they are not the culprit? It would be useful to understand that matter a bit better, because it is one of the NFU's concerns. 
 Although we welcome attempts to recover costs from those convicted of a fly-tipping offence, it would be useful to hear the Minister's views on how many farmers and landowners are still likely to have notices served on them in cases in which they plead their innocence. Has the Minister any figures on the number of cases of farmers who are charged with illegal fly-tipping, is that number increasing or decreasing, and what is the quantum? Are there a few dozen, a few hundred or thousands of cases a year? 
I close my remarks by saying that that fine organisation, the Country Land and Business Association, which is particularly effective in Suffolk, echoes the concerns of the NFU. It questions the wisdom of any extension of liability to owners who may have no control over the land in question. It feels that, at the very least, there should be a requirement for prescribed steps to have been taken by the authorities to identify a fly-tipper before the owner or occupier of the land is served with a notice. Has the Minister received representations from the CLBA to that effect? 
With those points, I shall resume my seat. I give qualified support to the amendment tabled by the Liberal Democrats.

Nigel Evans: I wish to speak to clause 43 and amendment No. 115, which I am also minded to support. We said earlier in our discussions that we want the polluter to pay, and I hope that the clause  deals with exactly that issue. Clearly, the problem is catching people tipping waste. If they can be caught, they can be brought before the courts, where they will face a fine. On top of that, they will have to pick up the costs of disposing of the waste, which could run into many thousands of pounds. We are talking about separating the fine for doing something wrong from the clean-up costs, which the culprit should have paid in the first place. That would ensure that they do not get away with it.
As I am sure the Minister would concede, if we did not include a provision on clean-up costs, in cases in which magistrates had been a bit lenient the fine would be lower than the costs of disposing of the waste. In such a case, the person would clearly have got away with it. We do not want to make it cheaper for people to tip waste illegally. We do not want them to think that they can go through all the judicial processes and end up with a fine that is lower than the clean-up costs of the waste. 
Having spoken in support of clause 43, I move to amendment No. 115, which deals with those who have not been convicted—those who are not responsible for the waste on their land. I hope that the Minister will at least say that the clause deals only with those who have been convicted and not with victims, because that is what they are. Farming is under a lot of pressure these days in any event and, by definition, people in that industry have a lot of land. Let us be realistic about farming in today's world. To make a go of it, farmers need more and more land. Farms have been bought up and merged—

David Taylor: Order. Will the hon. Gentleman return to the amendment and the clause that we are discussing?

Nigel Evans: I am more than happy to do so, Mr. Taylor. Farmers who have had waste tipped on their land are victims. The amendment says that when someone has made reasonable efforts to ensure that no waste is tipped on their land, they should not be liable for any clean-up costs. That is why the amendment is important.

Sue Doughty: The hon. Gentleman is making some very good points. It is not only farmers who are affected by that practice, but other landholders, such as the Woodland Trust and the National Trust. They are equally affected.

Nigel Evans: Absolutely. I agree that farmers are not the only ones affected, but I hope that the hon. Lady will excuse my using farming as a reference point for us. I heard what was said from the other side of the Committee about urban tipping. Clearly, some people who do not live in rural areas but own a bit of waste land and keep it in good order could come back to their works to find that someone has tipped waste on their land and that they could be liable for its removal. That could affect a number of organisations, as the hon. Lady rightly says, which is why her amendment is designed to give them some protection.
As I said earlier, the Minister has enough common sense and is realistic enough to know that those things happen. We hope that there will be a deterrent under clause 41, and that clause 43 will let people know that if they are convicted they will not get away with it but will have to pay the disposal costs, too. That is absolutely right. 
Furthermore, the mess made by anyone who is convicted should be cleaned up pronto, because as the Minister for Rural Affairs and Local Environmental Quality knows, as he took the right-to-roam legislation through the House, more people have more access to more land than ever before. If the waste is allowed to remain, it will become a danger to youngsters and people walking in the countryside, and a magnet for rodents. Fridges, for example, may seem attractive to youngsters to play in, but that can end in tragedy. 
Waste should be removed as quickly as possible but if it proves difficult to identify who tipped the waste, the amendment would help to ensure that an innocent party such as a farmer or a landowner does not have to pick up the extra costs when they have taken reasonable steps to ensure that their land has been protected. I hope that local authorities and the Environment Agency will encourage farmers and landowners to report incidents of waste being dumped on their land. As the Minister for Rural Affairs and Local Environmental Quality said, we need that data so that we know how big the problem is, but people who report such incidents must know that they will not have to face a huge bill for clearing up the mess.

Elliot Morley: Again, I do not disagree with much of what has been said, but I shall explain why the amendments are unnecessary.
The hon. Member for Guildford mentioned the Environment Agency's budget, but I do not know where her figure of £7 million came from. The Environment Agency spends about £12 million on waste-related activities, and its waste management budget is £82 million, an increase from £73 million in 2000. It is about 10 per cent. of its total budget and is fairly consistent.

Sue Doughty: The figure of £7 million spent each year on waste-related crime comes from information provided by the Environment Agency ahead of the Bill.

Elliot Morley: My figure of £12 million comes from the Environment Agency, so on that basis we will have to call it a draw. There is a resources issue, but I would not want the hon. Lady to think that the agency does not have considerable resources available; that is not to be complacent about its budget and the demands on it.
The amendments would apply when a person is convicted of illegal waste disposal. The clause will allow the courts to make an order requiring the offender to pay the costs incurred by the Environment Agency or a local authority or the occupier or owner of the land in respect of removing the waste deposited or disposed of, taking other steps to eliminate or reduce the consequences of the deposit or disposal; or both. I understand the reason for amendment No. 94, which would add ''and its legal disposal'' at the end of paragraph (a): the hon. Lady wants to be assured that steps will be taken to remove the waste and deal with it properly, which is perfectly reasonable. 
Amendment No. 115 would add a new subsection providing for those cases in which no such order is made. It would require the Secretary of State to make regulations which provide that the landowner shall not be liable for clean-up costs, provided that he had taken reasonable steps to prevent the offence. 
The amendments are unnecessary because the costs incurred in removing the illegally dumped waste by implication will include the costs incurred in legally disposing of it elsewhere. That must be a prerequisite in the proposal. Local authorities sometimes fall out with each other, but if one local authority cleaned up the waste and then drove down the lane and chucked it in a hedge in another local authority, it would undermine the principle involved. I do not think such activity would occur. 
There is also no need to make regulations absolving a landowner of liability for clear-up costs, as nothing in the current legislation or the Bill would make him liable—there is no such provision now, and that is not changing. The only provision that will apply to landowners as a result of clause 50 is section 59 of the Environmental Protection Act 1990, which gives the Environment Agency and waste collection authorities powers to serve clear-up notices on an occupier of land, as has been said. However, notices would be served only if the landowner was felt to be liable in some way for the fly-tipping. The occupier would be able to appeal, and the notice would be quashed if the occupier had neither deposited nor knowingly caused or permitted the depositing of the waste. Should clause 50 stand, the same provision will be extended so as to apply, in the absence of an occupier, to landowners.

Nigel Evans: I want to get this absolutely right, because the last thing we want is to say that this will all be tested in court. That, too, would be a huge cost for farmers, and they do not want to go down that route. Will the Minister give a categorical assurance that if  the farmer is not responsible for the waste that has been dumped on his land, no clean-up costs will be imposed on him under the Bill?

Elliot Morley: Oh no, I cannot do that. I have a lot of sympathy with innocent farmers in this respect, and I have such cases in my constituency. However, there are also cases, as I shall explain in a moment, that show why it is difficult to give all landowners a complete indemnity in relation to cleaning up fly-tipped waste.
If fly-tipping occurs on someone's land—as has been said, it is not only farmers but a range of landowners who suffer this problem—the important thing is, first of all, to try to track down those who did it. If we can do that, they can, under the Bill, be made to meet the costs of cleaning up the waste, as well as facing the relevant penalties for having dumped it. If the landowner is held responsible, orders can be put on them, regardless of whether they are in an urban or rural area. I say that because some people who own property in urban areas allow their back yards to be used as dumping grounds, and that is a bit of a problem in parts of my constituency. Such landowners can be made to clean up the waste, because their property is not secured and it is their responsibility. However, if it is clear that the owner or occupier is not responsible, they will not be forced to meet the clean-up costs. 
The position in the Bill is the same as it is now. If waste is dumped on private land, it is the landowner's responsibility to remove it. In some cases, the local authority will take it away, but that is a decision for the authority, not a statutory requirement. Authorities sometimes do that as part of good management, and I very much welcome that, but in the end, responsibility falls to the landowner, and I have a great deal of sympathy with them in that regard. 
The problem is how we deal with the issue in legislation. Sadly, some landowners do not take steps to prevent waste from being dumped. I know from my own constituency cases of a landowner who allowed construction waste to be illegally dumped on his land without planning permission, and action was taken against him under the planning laws. He had a bit of land and allowed people to dump waste on it. He took money for that, but he did not secure the land, so people were not only paying him to dump waste, but coming at night and dumping more. It would be quite wrong to pay for us to meet such clean-up costs. 
In another case, a farmer had a lot of waste stored illegally on his land. The Environment Agency told him to remove it properly and legally. The next time the agency came to inspect, the waste was indeed gone, but there was a very suspicious mound in the middle of his field. On further investigation, they found that he had just buried the waste in his field, including fridges. He was fined £20,000, which is a much more effective fine. 
That farmer was also the Conservative leader of the local council, as it happens, and is currently serving three months suspension by the Standards Board. It  shows that all sorts of different circumstances arise. It is very difficult to deal with that, and the Bill is trying to get that balance right.

Sue Doughty: A landowner may get planning permission for something that involves landscaping, such as a golf course, but may have no intention of constructing that a golf course. He may allow unlicensed tipping of, perhaps, construction waste, under the guise of landscaping. Does the Minister have a view about those particular circumstances?

David Taylor: Order. The clause relates to clean-up costs.

Elliot Morley: There is an issue of clean-up costs. That is a very difficult one, and yet another example of potential abuse that needs to be taken into account.
We have powers in the clause to enforce clean-up costs for those who are responsible, for those who have not secured their land, for those who have acted irresponsibly and for those who have acted illegally. I repeat that I have a great deal of sympathy with innocent victims, and in these crimes the vast majority of landowners are victims. The best way that we can help them is to have effective measures to deter such behaviour, to track the polluter down, and to prosecute and make them pay. That is how we have to deal with the problem. Hon. Members are worried that unreasonable costs will be imposed on landowners. If they are not responsible, costs will not be imposed. The way they deal with the problem will be a matter for them, and in some cases local authorities will assist them.

Nigel Evans: The Minister said that farmers who cause the waste themselves will quite rightly pay. I know of a farmer who had a dispute with a local authority and left rusting farm implements in a very visible area of his farm. He should quite clearly pay for the removal of that waste. Where a farmer also takes money, it is again quite right, because he has turned his farm into a tip and clearly that should not be allowed either.
In this amendment, we are fighting for the innocent farmers. The assurance we want from the Minister is that, under clause 43 on clean-up costs, if the farmer is an innocent victim he will not pay the clean-up costs.

Elliot Morley: I really cannot give that assurance because, in the end, someone has to meet that cost. The problem is that, if the cost fell on the local authority, then there is little incentive for those who are unscrupulous to secure their land, or to take steps to minimise waste. So it is a very difficult issue to deal with, even though I agree with the hon. Gentleman that the vast majority of people are innocent victims. We must ensure that we take steps to stop this practice. I welcome the fact that, in many cases, local authorities work with landowners in dealing with waste.

Patrick Hall: I understand the point that the Minister is making. Might he consider issuing guidance, so that some account is taken of the circumstances in difficult cases when a farmer is entirely innocent?

Elliot Morley: It would not help in the end, because the issue is the removal of the rubbish. Responsibility lies with the people who put it there. We all know, however, that those people cannot always be tracked down. In those circumstances, it is the responsibility of the landowner. However, if they are not involved, the powers and orders that can be applied to force them to take steps—which can involve considerable cost—would not be applied. If they felt they were being unreasonably applied, there is the option to appeal against that.
I very much hope that I have answered all the points raised, and that the Committee can support the clause.

Sue Doughty: I would like to deal with these two amendments separately. We take on board the Minister's comments on amendment 94, that it is an intrinsic part of the regulations that legal disposal is part of the cost of removing waste. We will seek to withdraw amendment No 94, but I will move amendment No. 115 formally and press it to a vote.
One of my first questions to the Minister was about how we will get convictions in order to pay the clean-up costs. At present, we have a victim but no one pays the costs. The Minister was unable to say that if a farmer had taken reasonable steps to prevent the offence he would not be liable for the costs. He talked about tracking down the person who did it. We know already that the Environment Agency is not tracking such people down. West Surrey farmers made it clear that two things happen if they report incidents to the Environment Agency in the hope that it will try to convict the perpetrator. First, it gives up very early on in the chase, and secondly it tells the farmers to clean up, so they bear the costs. That is unjust. There is no natural justice in this whole approach. It is making the farmers the victims, and it is legitimising a practice that is already taking place.

Nigel Evans: Does the hon. Lady agree that when Ministers say that they have to incentivise farmers to make their land secure, which is covered in her amendment, they must also incentivise the Environment Agency and the other authorities to ensure that they are encouraged to track down the people who are tipping waste? If they always believe that the landowner will ultimately pay the costs of clean-up there is no incentive for them to catch these tippers.

Sue Doughty: I thank the hon. Gentleman for that helpful intervention. That is so. When I attended a parish council meeting last week about fly tipping on Stringers common in Worplesdon, it was clear that it had given up on the Environment Agency. The agency should have installed cameras to track down those responsible for what was happening, but it was left to the local bobby and the parish council to do all that they could to identify who was doing the fly tipping. That is not adequate.
We have tried to get more funding into the Environment Agency as it will deal a lot more with clean-up. Although we may dispute whether it is £12 million or £7 million—it is an honest difference of opinion—the structure is not there to get a conviction.  We cannot deal with clean-up costs in that way. The Minister has failed to get farmers, who are genuinely innocent victims, off the hook.

Elliot Morley: I shall make two points. I repeat that I have every sympathy with the vast majority of farmers and landowners who are perfectly law abiding and respectable. However, if the full costs of the clean-up fell on local authorities and local council tax payers, which is where it would go, what would prevent unscrupulous minorities in every walk of life from putting rubbish on their own land and expecting council tax payers to pay for its removal? In fact, there is even a possibility of making money out of such criminal activity.
Secondly, the hon. Lady referred to the funds available to the Environment Agency. The additional cost implications of this problem are enormous. I do not know whether this is another issue to go on the Liberal Democrat shopping list, but there are costs that she must take into account if she wants to be responsible.

Sue Doughty: On the first point, if something is fly-tipped on to the local authority's land—on a verge, for example—the public purse already picks up the costs. This is inconsistent.

Elliot Morley: It is the landowner, so it is consistent.

Nigel Evans: The case of the landowner who has clearly not secured his land and ends up with waste tipped on it is dealt with in the amendment. He would pay the clean-up costs. However, where it could be clearly shown that he had taken due regard to protecting the property from fly-tippers, he could not be held to blame.

Sue Doughty: That is a powerful point. Many farmers have already secured much of their land. They have problems with illegal incursions by travellers, and in many cases protection is in place. A specific group is involved. We invited the Government to allow the Environment Agency to retain fixed penalty notice fines, and they were not having any of that. We identified a source of some if not all of the costs; but no, that could not be used. We found a way of funding or part-funding the proposal, but the Government said no. We are still deeply dissatisfied with the Government response, and we shall press amendment No. 115.
I beg to ask leave to withdraw amendment No. 94. 
Amendment, by leave, withdrawn. 
Amendment proposed: No. 115, in clause 43, page 38, line 20, at end insert— 
 '(4) The Secretary of State shall make regulations such that where an offence has been committed under section 33 of that Act and no order is made to provide compensation for clean up costs incurred following that offence, the landowner shall not be liable for the clean up costs provided that he took reasonable steps to prevent the offence.'.—[Sue Doughty.] 
Question put, That the amendment be made:—
The Committee divided: Ayes 4, Noes 9.

Question accordingly negatived. 
The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill. 
Question agreed to. 
Clause 43 ordered to stand part of the Bill.

Clause 44 - Forfeiture of vehicles

Question proposed, That the clause stand part of the Bill.

David Ruffley: The clause deals with the introduction of a possible ruling by the courts for the confiscation of vehicles of those convicted of an offence under section 33 of the Environmental Protection Act 1990.
Legislation on the confiscation of property should be dealt with sensitively and with due regard to the possible effect on the person convicted. Of course someone who is guilty of, and sentenced for, illegal fly-tipping should receive the appropriate sentence. The question is whether the sentence is always proportionate. In cases for which the criminal law provides for confiscation of property, one should consider the circumstances and whether the system makes bad people worse. 
I do not think that anyone would have difficulty with the idea of the courts cleaning out the bank accounts of convicted drug dealers and confiscating such property as they had. However, it is to be hoped that any court considering making an order under clause 44 would take account of the likely effects of confiscation on the convicted person's employment prospects and livelihood. I should like to hear what assessment the Minister's Department has made in that respect. Has he considered the case of someone on the minimum wage who is convicted of such an offence? A reasonable fine may be imposed on them, but then a confiscation of property order may be further imposed. Is it enough to say that magistrates will use their discretion when it comes to the forfeiture of vehicles? People could be left out of jobs and money, and families could be affected.
I wonder what examples the Minister can give from other areas of criminal law of the confiscation of vehicles or the tools of one's trade, albeit those of a convicted person. No one doubts that such people deserve punishment, but sometimes the punishment can have consequences way beyond the censure of the law and proportionate punishment. Can the Minister describe any analogous parts of criminal law to give us comfort that something as potentially serious as the forfeiture of a vehicle will not lead to destitution, unemployment and a disproportionate penalty on the convicted person? I look forward to the Minister sharing some perspectives on analogous parts of the British criminal justice system as it relates to forfeiture of property such as vehicles.

Nigel Evans: As has already been mentioned, there is precedent for the forfeiture of vehicles in certain circumstances, such as those involving drug dealing. Vehicles can be and are seized by Customs and Excise in cases of the smuggling of tobacco products and alcohol, but I am not sure whether there is a duty in those circumstances, as there will be in this clause, to consider the impact of the loss of the vehicle on the person who will lose it. I do not know if the clause is based on that measure, or whether, when a vehicle is seized at Dover and a conviction is subsequently achieved, the courts have to consider the fact that there will be a loss of income if the person loses the vehicle because they cannot go about their lawful business. I would be interested to know if there is a precedent and how it operates in reality. It is always useful to find that out because when Customs and Excise is very zealous, people lose their vehicles, and that may well have an impact on their livelihoods.
I heard what my hon. Friend the Member for Bury St. Edmunds had to say about proportionality, but the clause deals with that: it puts an onus on the courts to consider the offence, the circumstances of the person before them and the value of the vehicle and its contents in order to decide whether to seize the vehicle, with or without its contents. Under the clause, the courts have a duty to consider the circumstances of the individual. 
Let us look at the example of a builder. We have talked about construction waste—clearly there is a lot of waste involved with construction, which can be quite expensive because of landfill disposal. Suppose that a builder is caught disposing of construction waste illegally in his own vehicle, which will probably contain some of the tools of his trade. Under the clause, the courts will have a duty to consider the circumstances and say, ''Well, if we seize the vehicle and its contents, the builder will not be able to continue doing his construction business. That will have a huge impact on his livelihood: it could put other people out of work and put him out of business. Therefore, we will not do that because we have been asked, under clause 44, to look at the circumstances of that particular business.'' That is one person who might, under previous clauses, receive a fine and be asked to clean up waste—or the waste would be  cleaned up and the cost would fall on him—but who would be allowed to retain his vehicle and its tools to go about his business. 
Going back to something that the hon. Member for Guildford said in connection with another clause, if the person is a repeat offender, I assume that the courts will be able to say, ''Hold on, we have had this guy in front of us three or four times. Under the explanatory notes, we should try to dissuade him from continuing to do this, so despite the fact that he could lose his van, vehicle and tools, and therefore his livelihood, he is a serial offender and is using that vehicle to tip waste, and enough is enough.'' Under the duty in the clause, the court could consider the circumstances but still take the vehicle and its contents—or perhaps leave the tools for other people in the firm to use—so that that person would pay a price. That would be right for repeat offenders, because something must be done to dissuade them. 
Some people must make a living out of using their own vehicle to tip waste illegally. They go around at 2, 3 or 4 am and have no due regard for people's private property. The hon. Member for Guildford mentioned that waste could be left on the verge of a road, so it is the local authority's duty to clean it up, but that should not enable people to get away with it. If someone's business revolves around tipping waste willy-nilly, they have to know that there is a price to pay and that they may lose their vehicle. If someone does that for a living, I have no qualms about them losing their vehicle to prevent them from tipping waste in future. It is a hefty penalty, but it will stop them. 
I assume, having looked at the clause, that it does not deal with people who hire vehicles. The person from whom they hire it will not know that they are using it for tipping waste, so the firm that owns the vehicle should not lose it, and I assume that that is taken into account. 
Mr. Morley indicated assent.

Nigel Evans: The Minister nods reassuringly. If that were the case, it would be a great worry to van renters around the country. However, if people have been using their own vehicle to tip waste, they should lose it.
If someone uses a private car—it does not have to be a van—to dispose of waste illegally and they are caught, either by the police or someone else, and convicted, I assume that that will be covered by the clause. I hope that the duty will be for the courts to say, ''Hold on, you knew what you were doing when you tied that sofa or mattress to the top of your vehicle''—it could be anything from a battered old wreck to a fairly new car—''took it to a piece of open land and discarded the waste willy-nilly for other people to pick up the costs of disposal. We have therefore decided you will pay a price.'' Whether that should happen on the first, third or fourth offence, I do not know, but we are seeking an assurance from the Minister that there will be proportionality under clause 44.

Paddy Tipping: Is not the price that we all pay because of serious, serial cowboy offenders the price to our environment? Am I right in thinking that the hon. Gentleman supports the forfeiture of vehicles in such cases?

Nigel Evans: I have no doubt that if cowboys are going around serially offending they should lose their vehicles. They should pay a hefty price: that is the only thing that will prevent them from offending in future. If they received a fine and lost their vehicle and its contents, I would have no doubt that they would not re-offend. I referred to changing the culture. We may look at these clauses again in a few years' time and say that we have changed the culture on the disposal of waste, just as we have on smoking in public places and so on. The first time that someone is caught tipping a mattress on a bit of open land, they will lose their car straight away—one strike and you're out. What I want, and what I think the Minister is trying to achieve in the Bill, is to get it into the mindset of the public, whether they are in business or private householders, that tipping is a serious offence and that offenders could not only receive a fine, but lose their vehicles. I therefore support the clause.

David Drew: May I start by saying what a delight it is to serve under your firm but fair chairmanship, Mr. Taylor? I shall not delay the Committee long, but I intervened on this point earlier in our proceedings and I want to reinforce it by saying that according to Colin Peake, the antisocial behaviour officer of Stroud district council, my local authority, this is the single most important element of the Bill. Colin tells me that what he finds most galling is that, although serial offenders know that they may be forced to pick up the waste and may suffer a fine, the one thing that they always get away with is the means whereby they were able to commit the offence. They keep their vehicle and can do it again.
As the hon. Member for Ribble Valley said, it could be a first-time offender, someone just taking something out of their car boot, but I would expect everyone to consider the circumstances and proportionality. The person could have taken a number of car batteries or tyres out of the back of their car. As we all know, it is a devil of a job to get rid of those items. They are hazardous waste according to every definition, so we should feel no sympathy. We should back those who try to enforce the clause, if it is passed. Linking it to clause 46, which makes a great deal of sense, we will want the authorities to be somewhat proactive. I hope that, if materials have been dumped and they know that a vehicle in the vicinity has been seen there before, there will be an opportunity to link the measures. I know that I am looking ahead from this clause to the next one, but they are inextricably linked. 
I hope that we will hold the line and send a clear message that the one thing that will really hurt those who offend is taking away their vehicle. People think that they can get away with offences, whatever the level  of the fines. Often, the offenders are people in the industry who think that it is a good way to save a bob or two. As I said, the one thing that will really penalise offenders is taking away their vehicle. I therefore congratulate the Government on the clause. They are absolutely right. From what I have been told, all the evidence from the people who are trying to enforce offences is that this clause will make the difference, so let us see it through as quickly as possible.

Sue Doughty: I shall not go over ground that other hon. Members have covered perfectly adequately about the importance of sending a strong message, but the Minister will recall that on Second Reading there was concern about Travellers who use their vehicles for fly-tipping. As we know, Travellers can become effective lawyers and use various defences. We are aware that occasionally Travellers use their vehicles for fly-tipping, and the vehicle that they use may be the same vehicle used for towing their caravans. On Second Reading, I asked the Government to look into how the human rights legislation would affect that area. If a Traveller said in his defence, ''I need my vehicle to tow my trailer'', what view would the Government take?

Elliot Morley: I thank my hon. Friends for the strong support that they have given. The various circumstances of confiscation are covered in subsection (7). It outlines what the courts should take into account, such as the value of the vehicle, the likely financial effects on the offender, and
''the offender's need to use the vehicle for lawful purposes'', 
which probably covers the point made by the hon. Member for Guildford. However, the court's decision would depend on the circumstances. Someone may have been towing a caravan with a battered old transit van, but if it was not worth much, they could go out and buy another one. The court will take the circumstances into account, and must also have regard to whether 
''the offender is engaged in a business which consists wholly or partly in activities which are unlawful by virtue of section 33.'' 
There is also the question of repeat offending. Someone who is a repeat offender would get much less sympathy from the court when deciding how the measure should be applied than others might. 
 The provision is effective. People try to avoid penalties, but if someone is engaged in illegal activities—some of which could be worth a great deal of money—the sanction of confiscating the vehicle is important. The provision also sends a clear message to people who are involved in domestic fly-tipping that that is not a minor issue, and that their car is at risk. I have already made that point in press notices to my local paper. It is a significant sanction, because we are dealing with significant offences. I hope that the Committee will support the clause. 
Question put and agreed to. 
Clause 44 ordered to stand part of the Bill.

Clause 45 - Failure to furnish documentation: fixed penalty notices

David Ruffley: I beg to move amendment No. 64, in clause 45, page 40, line 31, leave out ''£300'' and insert ''£750''.
We have had an interesting debate this morning about the levels at which penalties and fines should be pitched, and the amendment returns to that theme. The amendment would insert a higher figure for fixed penalty notices incurred through failure to furnish the requisite documentation. 
 Clause 45 covers the introduction of a duty 
''on any person who imports, produces, carries, keeps, treats, or disposes of controlled waste or, as a broker, has control of such waste, to secure a written description of the waste whenever it is transferred.'' 
That is a perfectly sensible proposition. The clause also 
''empowers an enforcement authority to issue a fixed penalty notice to a person who has failed to comply with a requirement to furnish documents'' 
 under the regulations. 
I am glad to say that waste disposal companies have welcomed the introduction of the measures in the clause. They feel that those measures will go a long way towards cracking down on the cowboy element in that sector. It is to be welcomed that, at last, the fine for not having a licence will be greater than the cost of obtaining one. I believe that the cost of registration runs at around £133, and the new fixed penalty will be set at £300. It is true that the number of registered carriers dropped from 92,000 in 1992 to 50,000 in 2004; it is alleged that that is largely due to a lack of enforcement. Although the £300 fine is more than the cost of registration, we wonder whether it is still too low, and inadequate in the face of those who seem determined to make a large amount of money from the illegal transport and disposal of waste. 
The Local Government Association questioned the new fixed penalty of £300 in the clause. It highlighted the large sums that can be made by unregistered carriers and the fact that a £300 fine is unlikely to act as a deterrent to those who break the law. I have some sympathy with the LGA's request for a review of the amount of the fixed penalties for failure to comply with a requirement to furnish documentation to assess the impact of the new penalty notice regime after the first year. 
I should be interested to hear from the Minister, first, why his Department decided on £300 and, secondly, if he will respond positively to the LGA's request for a serious assessment, after a year, of the new regime's impact on the activities of illegal transporters and disposers of waste. 
The amendment tabled by my hon. Friend the Member for Vale of York (Miss McIntosh) is sensible, as £300 will not be a sufficient deterrent. It would be a gnat's bite on the potential daily or weekly profits from the illegal activity that the Bill tries so manfully to stamp out or curb.

Nigel Evans: I, too, want to speak in favour of the amendment. Traceability is important in respect of fixed-penalty notices for the failure to furnish documentation. We must know exactly what type of controlled waste is being disposed of and in what quantities. As a Conservative, I naturally believe in as little bureaucracy and red tape as possible, but that does not mean getting rid of all of it, as some is of great benefit to the community. I suggest that in this case the bureaucracy is useful in insuring the traceability of controlled waste.
There is an important job to be done in the first place by people who have a licence for this speciality; we are not talking about ordinary people. If those who have  a licence fail to comply with the law, it is right that they should know that they will receive a fixed penalty. However, that penalty must act as a deterrent and help to ensure that the licence holders keep the paperwork up to date. They must be aware that someone could call on their business at any stage to see how much waste they are disposing of. Indeed, if some waste has been illegally tipped, they might want to discover the source— 
It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order. 
Adjourned till this day at half-past Two o'clock.